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FIRST
SECTION
CASE OF TIBILOV v. RUSSIA
(Application
no. 38943/04)
JUDGMENT
STRASBOURG
2 October
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Tibilov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 11 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38943/04) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Albert Amiranovich
Tibilov (“the applicant”), on 3 October 2004.
- The
Russian Government (“the Government”) were represented by
Mrs V. Milinchuk, former Representative of the Russian
Federation at the European Court of Human Rights.
- On
5 April 2007 the President of the First Section decided to give
notice of the application to the Government. He also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1947 and lives in Sochi, a town in the
Krasnodar Region.
- As
an employee of the State-owned Scientifico-industrial Centre for
Mountain Horticulture and Industrial Floriculture, the applicant was
entitled to a service flat. The flat was not provided, and the
applicant sued the Centre.
- On
19 July 1993 the Khosta District Court of the Krasnodar Region
ordered the Centre to provide the applicant with a flat for a family
of four. This judgment became binding on 31 August 1993, but was not
immediately enforced.
- As
in the meantime the Centre had been reorganised, on 10 June 2003 the
District Court redirected the enforcement proceedings to the Centre's
successor – Russia's Academy of Agricultural Sciences.
- On
the applicant's request, on 5 September 2003 the District Court
changed the mode of enforcement to a cash payment. The court found
that the applicant had been entitled to a three-room flat and that
such a flat could cost 1,368,000 Russian roubles (RUB). The court
relied on a professional evaluation of December 2002 submitted by the
applicant.
- On
21 January 2004 the writ of enforcement was passed to the Ministry of
Finance and on 8 February 2005 the Ministry paid the debt.
- On
25 March 2005 a court awarded the applicant RUB 272,000 to compensate
his inflationary loss caused by the delayed payment.
- On
15 April 2005 the applicant bought a one-room flat for 45,494 US
dollars.
II. RELEVANT DOMESTIC LAW
- Under
section 9 of the Federal Law on Enforcement Proceedings of 21 July
1997, a bailiff must enforce a judgment within two months. Under
section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of
Finance must enforce a judgment within three months.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained about the non-enforcement of the judgment. The
Court will examine this complaint under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1. Insofar as relevant,
these Articles read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ...
by [a] ... tribunal...”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- In
their original observations, the Government admitted that the
applicant's rights had been violated, since the State had been
responsible for a delay of seven years and seven months. In their
further observations, the Government argued that the application
should have been declared inadmissible, since the State had been
responsible for a delay of three years (which was reasonable), and
since the applicant had missed the six-month time-limit.
- The
Court notes that the Government's observations are
self-contradictory, and that they have provided no plausible
explanation for this contradiction.
- The
Court thus considers that the Government have failed to rebut the
applicant's complaint. Accordingly, there has been a violation of
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- In
respect of pecuniary damage, the applicant claimed 74,006 euros
(EUR). This amount was meant to compensate his loss caused by rising
real estate prices. In particular, he argued that the money he
received in the end had not paid the full price of the one-room flat
he had had to buy, still less the price of the three-room flat to
which he had been originally entitled. He also argued that, when
changing the mode of enforcement, the domestic court had undervalued
the price of the three-room flat.
- The
Government argued that this claim had been excessive and
unsubstantiated, given the applicant's improvised way of estimating
inflation. Besides, it had been wrong to index-link the alleged loss
to real estate, since the mode of enforcement had been changed to a
cash payment.
- The
Court rejects this claim. As to real-estate price inflation, the
Court notes that when changing the mode of enforcement, the domestic
court referred to current prices and thus compensated any preceding
inflationary loss. The award entirely corresponded to the applicant's
claim, and hence cannot be contested by the applicant. As to monetary
inflation, the Court notes that it has been already compensated by
the domestic decision of 25 March 2005.
- In
respect of non-pecuniary damage, the applicant claimed EUR 10,914.73.
- The
Government argued that this amount had been excessive and
unsubstantiated.
- The
Court accepts that the applicant must have been distressed by the
delayed enforcement of the judgment. Making its assessment on an
equitable basis, the Court awards EUR 3,000 under this
head.
B. Costs and expenses
- The
applicant made no claim for the costs and expenses. Accordingly, the
Court makes no award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Russian roubles
at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 2 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
